Post Tagged with: "warrantless disclosure"

Earlier this year, reportsindicated that the Canadian Border Services Agency had requested subscriber information over 18,000 times in a single year, with the vast majority of the requests and disclosures occuring without a warrant. The information came to light through NDP MP Charmaine Borg’s efforts to obtain information on government agencies requests for subscriber data. Borg followed up the initial request with a more detailed list of questions and earlier this week she receive the government’s response.

The latest response confirms the earlier numbers and sheds more light on CBSA practices. First, the CBSA confirms that requests for subscriber information are conducted without a court order by relying upon Section 43 of the Customs Act. It provides:

In the aftermath of the Supreme Court of Canada’s Spencer decision, several leading Canadian ISPs have publicly announced that they have changed their practices on the disclosure of subscriber information (including basic subscriber information such as name and address) to law enforcement. For example, Rogers announced that it will now require a warrant or court order prior to disclosing information to law enforcement except in emergency situations. Telus advised that it has adopted a similar practice and TekSavvy indicated that that has long been its approach. SaskTel says that it will release name, address, and phone number.

Unlike its competitors, Bell has remained largely silent in recent weeks. In media reports, the company says little more than that it follows the law. In fact, the Toronto Star’s Alex Boutilier tweets that the company is now declining to respond to journalist inquiries about the issue. In the past, the company was a clear supporter of disclosing “pre-warrant” information in some circumstances to law enforcement. As detailed in this Canadian Bar Association article:

Having had the benefit of a few days to consider the implications of the Supreme Court of Canada decision in Spencer, the Senate last night proceeded to ignore the court and pass Bill S-4, the Digital Privacy Act, unchanged. The bill extends the ability to disclose subscriber information without a warrant from law enforcement to any private sector organizations by including a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. Given the Spencer decision, it seems unlikely that organizations will voluntarily disclose such information as they would face the prospect of complaints for violations of PIPEDA.

Despite a strong ruling from the Supreme Court of Canada that explicitly rejected the very foundation of the government’s arguments for voluntary warrantless disclosure, the government’s response is “the decision has no effect whatsoever on Bill S-4.”

My post and column on the expansion of warrantless disclosure under Bill S-4, the misleadingly named Digital Privacy Act, has attracted some attention and a response from Industry Canada. The department told iPolitics:

“Companies who share personal information are required to comply with the rules to ensure that information is only disclosed for the purpose of conducting an investigation into a contravention of a law or breach of an agreement. For example, self-regulating professional associations, such as a provincial law society, may wish to investigate allegations of malpractice made by a client. When organizations are sharing private information, the Privacy Commissioner can investigate violations and may take legal action against companies who do not follow the rules. This is consistent with privacy laws in British Columbia and Alberta and was recommended by the Standing Committee Access to Information, Privacy and Ethics.”